Brexit: what impact on those currently exercising free movement rights?

For as long as the UK remains a Member State of the European Union, it is subject to laws guaranteeing EU citizens the right to free movement throughout the Union. British citizens will continue to enjoy EU citizenship until the UK exits the EU.

The latest available data suggests that in 2015 there were around 1.2 million British citizens living in other EU countries, compared with around 3.2 million EU citizens living in the UK.

EU free movement rights

Free movement is central to the concept of EU citizenship. It is a right enjoyed by all citizens of the Union (those with nationality of any of the 28 Member States).

All EU citizens have a right to reside in another EU Member State for up to three months without any conditions other than the requirement to hold a valid identity card or passport. After three months certain conditions apply, depending on the status of the EU citizen (eg whether they are a worker or a student etc). Those who opt to exercise their free movement rights are protected against discrimination in employment on the grounds of nationality. Provisions co‑ordinating social security rules ensure citizens do not lose entitlements by working elsewhere.

EU citizens who have resided legally for a continuous period of five years in another EU Member State automatically acquire the right to permanent residence there. To qualify for permanent residence, students and the self-sufficient must possess comprehensive sickness insurance cover throughout the five year period. Confusingly, while EU citizens in the UK have access to NHS care, this does not satisfy the requirement to have comprehensive sickness insurance cover.

UK immigration law as it applies to non-EU citizens is significantly more restrictive.

What was said during the referendum campaign?

The Government White Paper noted that if the UK left the EU, remaining Member States would no longer be required to maintain the rights currently enjoyed by UK citizens. Securing these rights would likely require the offer of reciprocal protection for EU citizens resident in the UK.

Both the Vote Leave and Leave.EU campaigns claimed the status of EU citizens lawfully resident in the UK would be unaffected as a result of Brexit.

What has been said since the referendum?

The Government immediately sought to reassure EU citizens in the UK that there was no change in their status as a result of the vote to leave.

In the months since the referendum ministers have reiterated that the Government wants to protect EU citizens’ status. They say the only scenario in which such an outcome would be impossible is if the rights of British citizens in remaining Member States are not protected in return. Despite this, the Government has faced accusations of treating EU nationals as ‘bargaining chips’ in the negotiations with the European Commission.

In the past 12 months the issue of the status and rights of EU citizens in the UK after Brexit was the subject of two Opposition Day Debates and three select committee reports. It was debated at length during the passage of the Withdrawal from the European Union (Article 50) Act 2017. This Parliamentary comment is summarised in section 6 of this briefing paper.

The Government’s proposals on citizens’ rights post-Brexit

On 26 June 2017 the Government published a White Paper setting out its proposals for the status and rights of EU citizens in the UK after the UK’s exit from the EU. Under the Government’s plan, all EU citizens present in the UK before a cut-off date and with five years continuous residence in the UK may apply for a new ‘settled status’ - akin to ‘indefinite leave to remain’ in UK immigration law. The cut-off date will be no earlier than 29 March 2017 (the date the Article 50 process was started) and no later than the date of the UK’s exit from the EU. EU citizens in the UK before the cut-off date but without five years continuous residence in the UK can apply for a ‘temporary status’ in order to remain in the UK long enough to accumulate five years continuous residence, at which point they may apply for settled status.

Whilst the proposals appear to render permanent residence rights largely redundant, the Government confirmed that it will not seek proof of comprehensive sickness insurance cover from those applying for settled status.

The proposals, described as “generous” and a “fair and serious offer” by the Prime Minister, were met with criticism. European leaders said they left many questions unanswered. The campaign groups the3million and British in Europe warned of a lack of detail on how the Government will protect the rights of British citizens in the remaining EU Member States. The Labour party described the proposals as being ‘too little, too late’. The SNP criticised the government for failing to unilaterally guarantee EU citizens’ rights in the UK.

Polling data

Polls conducted since the referendum have all shown high levels of support for protecting the status of EU citizens lawfully resident in the UK.

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